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Civil Appeal No. 38 of 1976, decided on 17th November, 1985.

(On appeal from the judgment and order, dated 20‑2‑1973 of the Lahore High Court, Lahore, in Writ Petition No. 1226 of 1969).

‑‑Art. 185(3)‑‑West Pakistan Land Revenue Act (XVII of 1967), S.45‑ Leave to appeal granted to consider whether a review of a particular mutation was devoid of any legal basis in context of facts that property had escheated to Government and Government not being necessary party in suit, decree did not affect Government and so also appellant who was a transferee of this land from Government.

‑‑‑S. 45‑‑Constitution of Pakistan (1973), Art. 199‑‑Writ jurisdiction‑ Entries in mutation record‑‑Not evidence of title‑‑Entries in mutation register and other revenue records are not in nature of title deeds, but only have an evidentiary value in support of title, for termination of question of title civil Court is proper forum to adjudicate and not High Court in a constitutional petition.

Mian Ghulam Ahmed v. Muhammad Sarwar and others 1968 SCMR 573 and Bal and others v. Mian Dad and another 19611 S C M R 84V (2) rel.

‑‑‑Art. 199‑‑Writ jurisdiction‑‑Review of mutation entry challenged in writ jurisdiction‑‑Controversy involving question of facts and law and also avoidance of declaratory decree cannot properly be adjudicated upon in writ jurisdiction but can only be decided by a Court of general jurisdiction‑‑Order of High Court refusing to interfere, held, unexceptionable.

Ch. Khurshid Ahmed, Senior Advocate Supreme Court of Pakistan, Sh. Ghias Muhammad, Senior Advocate Supreme Court of Pakistan and S. Abdul Asim Jafri, Advocate‑on‑Record for Appellant.

A.R. Shaikh, Senior Advocate Supreme Court of Pakistan with Iqbal Ahmed Qureshi, Advocate‑on‑Record for Respondents No. 1.

Nemo for Respondents Nos. 2 to 3.

Date of hearing: 17th November, 1985.

‑‑This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 20‑2‑1973 by which Writ Petition No. 1226 of 1969 was dismissed.

The facts which give rise to this appeal are that two brothers namely, Hukam Singh and Inder Singh were occupancy tenants of 4 squares of land bearing Nos. 39, 41, 43 and 48 in Mauza No. 143/9‑L, Tehsil and District Montgomery. After partition Inder Singh admittedly migrated to India while Hukam Singh remained here alongwith his wife Mst. Jaikaur, and out of the lot he remained in possession of squares Nos. 41 and 48. He died on 25‑3‑1958 leaving him survinging his widow but no issue. The widow also died and on 21‑8‑1959 the Deputy Commissioner ordered the forfeiture of these two squares on the ground that they had escheated to the State. Subsequently Mutation No. 32 was sanctioned on 14‑10‑1959 giving effect to this forfeiture and on 27‑6‑1961 the land was sold to the appellant at the rate of Rs.450 per Acre under the retired and Retiring Servants Scheme, and in this regard sale Mutation No. 21 was sanctioned on 30‑1‑1964. Upon the death of the widow, Dost Muhammad, the first respondent herein, filed a declaratory suit against the deceased widow and Inder Singh claiming to be the owner in possession of these squares and other properties as a legatee under an oral will of Hukam Singh. Radha Krishan who is now represented by his legal representative, respondent No. 2 herein, got himself impleaded as a defendant in the suit claiming to be the adopted son of Hukam Singh and as such entitled to inherit his properties. He later compromised the suit and under the compromise Dost Muhammad received 6/10 share while Radha Krishan got 10/15^th in the properties left by Hukam Singh, and a declaratory decree, 28th of July, 1964 followed. Both of them thereafter applied for review of Mutation No. 21 which was cancelled and fresh mutation was sanctioned incorporating the declaratory decree. Litigation followed in regard to the review of Mutation No. 21, and ultimately the Board of Revenue by its order, dated 29‑6‑1969 cancelled the land in favour of Attaur Rehman and restored it to the respondent in terms of the declaratory decree. Here it would be pertinent to reflect what the Board of Revenue held in Para. 8 of its order:-

"The above arguments were heard on 6‑5‑1969 and it was felt that certified copy of the civil Court decree and also the will, any, made in favour of the petitioners, should be produced. These documents have now been received. After going through the record alongwith the above arguments I feel convinced that Hukam Singh, deceased, ‑.vas granted the proprietary rights in respect of Sq. No. 41 and 48 and the necessary conveyance deed was registered on 21‑11‑1944. It is true that this transaction was not incorporated in the revenue record with the result that it continued to be shown in the ownership of the State with tenancy rights held by Hukam Singh. In this behalf I am convinced that there are a number of rulings, whereby the Supreme Court have held that immediately on the deposit of the amount of Malkana, the proprietary rights vest with the transferee. So, I am satisfied that since 21‑11‑1944 the disputed land was a private property owned by Hukam Singh and the State was no more the owner of the land irrespective of the fact that the transfer of the proprietary rights was not incorporated in the revenue records."

In view of this finding the Board of Revenue held that the land was erroneously granted to the appellant treating it as State land. Again in para. 13 while attending to the propriety of the claim of the respondent, the Board of Revenue held as under:‑

"The third point to determine is whether the Government had any authority to dispose of this property in favour of the respondent treating it as a State land. In this behalf I hold that Hukam Singh, deceased, acquired the proprietary rights in 1944 as discussed above. Since then it vested in his ownership. It is not understood as to how the Government took away this property for its disposal to the retiring Government servants, particularly when the original owner lived and died in Pakistan in March, 1958. If the deceased owner had left no heir at all, the property could be eschated to Government after due formalities, but it was also not possible in the presence of the contesting claimants including his wife. So, I am convinced that the grant of land made in favour of the respondent is illegal and beyond jurisdiction."

The appellant impugned this order in the High Court through a writ petition, but did not succeed as the High Court hold while relying on the cases reported as Mian Ghulam Ahmed v. Muhammad Sarwar and others 1968 S C M R 573 and Lal and others v. Mian Dad and another 1968 S C M R 842(2) that the entry in a mutation record is not evidence of title, and, accordingly, any person aggrieved by such an entry has no locus standi to challenge it by way of a writ petition. The proper remedy in such a case is a suit.

Leave to appeal was granted to consider:‑

"whether a review of Mutation No. 21 was devoid of any legal basis in the context of the facts that the property had escheated to the Government and Government not being a necessary party in the suit, the decree did not affect Government and so also the appellant who was a transferee of this land from the Government."

A review of the judgments cited and relied on by the High Court beyond doubt establish a settled principle that entries in the mutation register and other revenue records are not in the nature of title deeds, but only have an evidentiary value in support of the title. And as for the determination of that question, it is the civil Court which is the proper forum to adjudicate on the question of title.

The controversy in hand and as formulated in the leave granting order involves questions of facts and law and so also the avoidance of declaratory decree which cannot properly be adjudicated upon in wirt jurisdiction because of its scope and the nature of the reliefs available, but can only be decided by a Court of general jurisdiction. Accordingly the order of the High Court is unexceptionable.

In the result, the appeal is without any substance and is dismissed, but with no order as to costs.

M. I. Appeal dismissed.

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